Ruling may open up malls to petition drives

A potentially far-reaching state Supreme Court ruling in a case involving a San Diego shopping mall has been almost lost amid all the large and very justified political headlines of the last two and a half months.

But in the long run, the ruling in Fashion Valley Mall v. National Labor Relations Board may have a greater effect on California's political process than all those other stories combined.

For this 4-3 decision could essentially reopen shopping malls and entry ways of big-box stores like Costco, Wal-Mart and Home Depot to the volunteer initiative petition circulators who once made those sites their most productive venues, but lately cannot.

No, the Fashion Valley decision did not specifically mention petition circulators. But it did say labor unions and political protesters are protected by freedom of speech when they leaflet shoppers at malls in California, even when those pamphlets urge shoppers to boycott stores within the malls. If they're protected, why not people with petitions?

The case arose in 1998, when Teamsters Union members in a labor dispute with the San Diego Union-Tribune newspaper handed out printed material near a department store in Fashion Valley. Leaflets asked shoppers to telephone the store's top executive because the store was a heavy Union-Tribune advertiser.

The shopping center promptly expelled the leafleters, saying they had no permit from the mall, whose rules prohibited advocating boycotts on its property.

Those shopping center rules were in keeping with federal law, which since 1976 has held that First Amendment free speech rights do not extend to private property. Subsequent decisions by lower federal courts and even some California state appeals courts toed the U.S. Supreme Court's line. That allowed shopping centers to chase initiative petition carriers away when management didn't like the measure they were promoting. It also allowed them to encourage petition circulating when stores or malls liked the cause involved, as many did with recall petitions against former Gov. Gray Davis in 2003.

But there was one major exception to the 1976 federal ruling. In a case that was largely ignored until the recent state decision, the California Supreme Court found in 1979 that the state Constitution allows greater free speech rights than the U.S. Constitution. States are always permitted to give their citizens more rights than the federal government provides, so long as they do not conflict with other federal laws.

Using that 1979 decision, the current state high court majority now says there can be almost absolute freedom of speech in California malls, so long as the speech doesn't cause disruption in normal commercial and other activity.

That may soon mean a comeback for petition circulators, restricted for the last decade or so to very limited areas in malls and usually banned from big-box entries. True, there is no mention of initiative petitions in the decision. But surely that activity qualifies as political expression.

If this happens, it can only be good for the initiative process. Most ballot initiatives of the past 10 years have been financed by well-heeled special interests from tobacco companies to racetracks, labor unions and casino Indian tribes.

Those interests can afford to send petition carriers house to house and they can fund mass mailings seeking voter signatures. The usual cost to qualify a ballot measure has ranged from $1.2million to $2 million.

But grass-roots volunteer organizations, which began the modern initiative movement by carrying petitions into shopping malls in the early 1970s, have been stymied.

The result: Since 1998, there have been no ballot measures seeking to assert new controls over utility companies. Nor has anyone qualified a measure filling in loopholes in the 1986 Proposition 65, whose rules requiring public notice when businesses use toxic substances are frequently circumvented.

It's even been difficult to qualify local measures restricting campaign donations for city council and county board members, or to put restrictions on their financial dealings with both campaign contributors and firms doing business with their respective cities and counties.

It's about time grass-roots groups regained some potency in the initiative process and this ruling just might allow it to happen.

Tom Elias is author of "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government's Campaign to Squelch It," now available in an updated third edition (e-mail: tdelias@aol.com).